A federal judge from the Eastern District of Pennsylvania has dismissed with prejudice the amended complaint of a high school softball player who sued her former coach and the school district after she was struck by a softball that was batted by her coach during a practice.
Plaintiff Paige E. Lesher sued the defendants pursuant to 42 U.S.C. § 1983, alleging state-created danger claims arising from injuries she suffered. The original complaint was dismissed without prejudice, leading her to file an amended complaint. In granting the motions to dismiss filed by Clark Zimmerman and the Hamburg Area School District, the court ruled that the plaintiff failed to allege facts showing that either her coach or the school district were “deliberately indifferent.”
By way of background, Lesher was a high school pitcher on the girls’ varsity softball team at the Hamburg Area High School. On April 24, 2016, while at softball practice at the high school, Lesher was warming up from the pitcher’s mound when the team’s coach, Zimmerman, approached the batter’s box and instructed Lesher to pitch to him. Zimmerman did not have Lesher stand behind a pitcher’s screen, nor had he distributed mouth guards. Zimmerman, who had never batted in this situation before, did not warn Lesher that he intended to hit at full-swing, and hit a line drive directly at her. Lesher was unable to react in time, and the ball struck her in the face causing severe injuries, including a fractured jaw and the loss of four teeth, that required at least eight surgical procedures and three root canals. The complaint also contained allegations about Zimmerman’s over-aggressiveness and four previous incidents involving student- athletes, none of which garnered a response from the school district. Lesher claimed that Zimmerman, by hitting at full swing knowing Lesher was not protected by a pitching screen, failed to protect her. She claimed that the school district also failed to protect her because it did not have an adequate policy, practice, or custom in place to train and/or supervise coaches on the proper use of safety equipment. Lesher asserted, instead, that defendants were deliberately indifferent to her safety.
After the original complaint was dismissed, she filed an amended complaint in which she alleged a couple other elements, such as:
Zimmerman and the other coaches used a pitching screen whenever they pitched, or whenever they were feeding the pitching machine to pitch batting practice to live batters in the batter’s box.
The School District’s handbook prohibits male participation on girls’ teams because “the physical size, speed and power of male athletes would create a hazard to the health and safety of female participants.”
There has been a “trend in recent years for many softball pitchers and even infielders to wear face protective masks when in the field.”
These additional elements did little to sway the judge.
“The amended complaint fails to sufficiently plead foreseeability, which is the first required element of a state-created danger claim,” wrote the court. “In the absence of a foreseeable risk, the amended complaint necessarily fails to plead deliberate indifference, which is the second required element of a state-created danger claim. See Morse v. Lower Merion Sch. Dist., 132 F.3d 902, 910 (3d Cir. 1997). Moreover, even if the harm was foreseeable, the amended complaint fails to sufficiently allege that Zimmerman was deliberately indifferent.”
Lesher v. Zimmerman and Hamburg Area School District; E.D. Pa.; No. 5:17-cv-04731, 2019 U.S. Dist. LEXIS 38276; 3/11/19
Attorneys of Record: (for plaintiff) Daniel E. Bausher, Lead Attorney, Stevens and Lee, Reading, Pa; Donald E. Wieand, Jr., Stevens & Lee, Allentown, Pa. (for defendants) Christine L. Line, Lead Attorney, Charles E. Haddick, Jr., Dickie McCamey & Chilcote PC, Camp Hill, Pa. Michael A. Boomsma, Post & Schell, Lancaster, Pa.